WI: Pre-Jardines dog search of door of house valid by good faith exception

Pre-Jardines dog search of door of house valid by good faith exception. State v. Scull, 2014 WI App 17, 352 Wis. 2d 733, 843 N.W.2d 859 (2014), affd 2015 WI 22, 2015 Wis. LEXIS 22 (March 5, 2015) (posted here). The court of appeals:

¶22 In light of the reliability of the process used to obtain the search warrant for Scull’s home and the state of the law at the time the search warrant was issued, we conclude that the police “‘acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment'” when they executed the search warrant and searched Scull’s home. See Dearborn, 327 Wis. 2d 252, ¶33 (citation omitted). As such, application of the exclusionary rule in this case would not act to “deter police misconduct” nor would the deterrent benefits of the rule “outweigh the substantial costs to the truth-seeking and law enforcement objectives of the criminal justice system.” See id., ¶38. Therefore, we conclude that the good-faith exception to the exclusionary rule applies in this case, and we must affirm the circuit court.

¶21 Relevant caselaw at the time the search warrant was signed also convinces us that the police acted reasonably in objectively relying on the search warrant in this case. As the State points out, prior to Jardines, dog-sniff searches of the type presented in this case had been held lawful in many jurisdictions. Furthermore, the law was and still is that a dog sniff of the exterior of a car is not a “search” under either the Fourth Amendment or the Wisconsin Constitution. Illinois v. Caballes, 543 U.S. 405, 408-09 (2005) (holding that a dog sniff of a vehicle during a traffic stop, conducted absent reasonable suspicion of illegal drug activity, did not violate the Fourth Amendment because it did not implicate any legitimate privacy interest).FN5

FN5 At the time the court commissioner signed the search warrant in this case, there was no case directly addressing this issue in the state courts of Wisconsin; although, as previously mentioned, the 7th Circuit Court of Appeals had addressed the issue in Brock. However, in 2011, the Honorable Lynn Adelman in the Eastern District of Wisconsin considered whether police “officers exceeded the permissible scope of [a search] warrant-which listed firearms but not controlled substances-by bringing a drug-sniffing dog into the residence.” See United States v. Jones, 2011 WL 294842, *1 (E.D. Wis. 2011). Relying on Illinois v. Caballes, 543 U.S. 405 (2005), in which the United States Supreme Court upheld the dog sniff of a vehicle absent reasonable suspicion, see id. at 408-09, the district court held that the dog sniff was not a search because “a sniff performed by a well-trained narcotics-detection dog-which reveals only the possession of contraband-does not implicate the Fourth Amendment,” see Jones, 2011 WL 294842 at *6. That other courts in Wisconsin found such searches to be valid under the Fourth Amendment further supports our conclusion that the police officers’ reliance on the search warrant in this case was objectively reasonable.